Local groups critical of new EPA water rule

Monday

Dec 17, 2018 at 5:00 AM

A new rule rollback by the EPA has environmental groups crying foul and the agricultural and home building industries cheering.

It's a water war.

And it's still raging.

The U.S. Environmental Protection Agency last week released a controversial new rule regarding which waterways the federal government can regulate, opening another chapter in a back-and-forth battle that stretches back to at least 2015, with roots dating all the way to the 1972 Clean Water Act.

At question is how granular the EPA can get when regulating waterways as part of what is often called the Waters of the United States, or WOTUS, rule. Last week the EPA reversed what it had argued in a 2015 ruling under the Obama administration, with the agency now claiming it has no authority to regulate groundwater, ditches, converted cropland, stormwater control features, wastewater treatment systems, wetlands not adjacent to major waterways, and ephemeral streams, or those that only fill with water after rainfall.

Still on the list of regulated bodies are rivers and creeks, lakes, ponds, and wetlands adjacent to such waterways.

Andrew Wheeler, administrator of the EPA, said he believes the newly updated rule, which falls under the Clean Water Act, is “clearer and easier to understand,” removing burdens from the agricultural and real estate industries, which were widely opposed to the 2015 rule.

But environmental and conservation groups across the country and region are crying foul, saying the re-write will harm the health of water bodies large and small.

“This is a fundamentally flawed step back for the Clean Water Act,” said David Kinney, mid-Atlantic policy director for Trout Unlimited. “By eliminating protections for thousands of headwater stream miles and hundreds of acres of wetlands, the new rule risks degrading fish and wildlife habitat that is important to hunters and anglers.”

Kinney's group estimates that about 59 percent of river and stream miles in the continental U.S. are intermittent or ephemeral, primarily in the southwest. They further estimate such waterways contribute to the health of drinking water supplies serving 117 million Americans.

For its part, the EPA claimed when announcing the rule that there was no way to evaluate how many streams and wetlands would lose federal protections under the new rule. But according to specialty publication E&E News, which tracks federal environmental policy, a 2017 presentation by the U.S. Army Corps of Engineers estimates about 18 percent of streams and 51 percent of wetlands nationwide would not longer be protected.

The EPA appears currently focused on what it views as over-burdensome regulations. Particularly controversial over the past few years, when more than two dozen states sued the EPA over the 2015 rule, was the potential regulation of ditches on private property. Groups representing the agricultural and home building industries argued the rule was unclear and drove up fees and costs. They also argued state regulations were already adequate.

“There are (state) laws on the books that already require permits and mitigation for those features. Now you have a double regulation,” Owen McDonough, environmental policy analyst for the National Association of Homebuilders, said last year, adding that federal waterway reviews can also open the door to additional regulations, such as those under the Endangered Species Act.

He said getting the required permits can take months or years and cost between $30,000 and $300,000.

“The cost of all of this is passed onto the homebuyer,” said Courtney Briggs, federal legislative director for the home builders association. “The higher we bring up these regulatory costs, the more people are priced out of the market.”

Environmental advocates, in turn, argued the 2015 ruling explicitly stayed away from man-made ditches on farms and properties. Locally, groups said they are focused on the potential impacts to more well-known waterways.

“The health of the Delaware depends on the streams like the Wissahickon, Neshaminy and Pennypack Creeks that feed it, and the wetlands that filter out pollution,” said Stephanie Wein, clean water advocate for the nonprofit PennEnvironment. “By stripping federal protections from streams and wetlands, the Dirty Water Rule would put the Delaware — and our drinking water — at risk of pollution. It defies common sense, sound science and the will of the Pennsylvanians.”

Catherine McCabe, secretary of the New Jersey Department of Environmental Protection, was also critical of the new rule, saying it would “penalize states that prioritize clean water and public health.”

“The Trump administration's proposal to roll back federal rules on clear water abandons our moral obligation to protect the environment for our children and grandchildren,” McCabe said in a statement. “It creates a 'race to the bottom,' encouraging states to loosen their own regulations.”

Pennsylvania and New Jersey do have state laws already more stringent than the federal protections.

In New Jersey, the state’s water quality regulations give it authority over bodies such as wetlands and small streams. It also defines potential pollution sources as “any natural or physical structure from which pollutants can be discharged (to waterways).”

“We have programs that focus on protection of ecologically sensitive streams and headwaters,” Larry Hajna, spokesman for the state Department of Environmental Protection, wrote in an email last year.

Pennsylvania’s Clean Streams Law, passed in 1937 and updated several times since, gives the state authority to regulate “any and all rivers, streams, creeks, rivulets, impoundments (when a dam creates a body of water), ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and all other bodies or channels of conveyance of surface and underground water ... whether natural or artificial.”

Opponents of the 2015 rule point to the state regulations as a leading argument why additional regulation by the EPA isn't needed. But advocates say repealing EPA protections chips away at the bedrock of environmental protection and leaves states on their own to defend and enforce policy.

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